Opinion

It’s Time To Limit Abusive, Taxpayer-Funded Environmental Litigation

Instead of allowing environmental groups with hundreds of millions of dollars in assets to file an endless chain of lawsuits at taxpayer expense, Congress should move decisively to end abusive practices that subtract from local conservation efforts, according to recent testimony delivered before House committees.

This can be done by reforming both the Endangered Species Act (ESA) and the Equal Access to Justice Act (EAJA), which are both now riddled with “perverse incentives” to litigate without setting clear, achievable goals for rescuing endangered species, legal analysts and local government officials have told members of Congress.

Kent Holsinger, the manager and founder of a Denver-based law firm that has expertise in land, wildlife and water laws, has put together a memorandum on “excessive environmental litigation” based on government figures that makes the case for reform.  Between 2009 and 2012, figures from the U.S. Department of Justice show the federal government was on the receiving end of more than 570 ESA lawsuits costing U.S. taxpayers in excess of $15 million in attorneys’ fees.

The Center for Biological Diversity and WildEarth Guardians have led the charge here filing 117 and 55 lawsuits respectively during this time, Holsinger explains in his memo.   Collectively, both groups have filed roughly 1,500 lawsuits since 1990. But with all the money that has spent on legal fees, how much has been accomplished in the way of saving endangered species?

Holsinger answered that question in the testimony he delivered before the House Committee on Natural Resources on July 17 where five new bills were introduced to amend the ESA.

“Only 23 domestic species have been delisted due to recovery,” he said in testimony. “In other words, we can celebrate the recovery of only 1% of all domestic listed species in the U.S. The regulatory burdens of the ESA have been severe while its successes have been sparse.”

He’s not alone in this assessment.

Tom Pyle, president of the Institute for Energy Research, a Washington-based nonprofit group that favors free market solutions to energy policy, said in an interview that the ESA has “failed to achieve its central goal of species recovery and has been used to obstruct affordable energy production.”

That’s partly because the ESA fails to properly account for local conservation efforts that have boosted the population of species to the point where they should not be considered endangered, he explained.

“The fact that species can still be listed even if local conservation efforts have been successful is a big problem,” Pyle said. “Keep in mind that the listing process can potentially disrupt any industry that uses land for production, including ranching, agriculture, and mining. We need a more even-handed approach that makes room for private conservation.”

While reform efforts have stalled, “sue-and-settle” arrangement made between politically well-connected environmental groups and compliant government officials in the EPA and the Interior Department have continued to burden taxpayers.

Sue-and-settle arrangements almost quintupled under President Obama in comparison to his predecessors, according to the Holsinger memo. In most of these cases, environmental groups are awarded litigation costs that include taxpayer-funded attorneys’ fees. In fact, the investigations cited Holsinger’s memo shows that more than $49 million was delivered to environmental groups through sue-and-settle tactics during the Obama years.

In addition to the bills that have been introduced to reform the ESA, Holsinger would also like to see lawmakers address the problems he sees with EAJA, which he describes in the memo as “a powerful tool often exploited by environmentalists to fund their unending stream of lawsuits.” He favors a “net worth cap” that would limit the amount of money that wealthy green groups could recover when they sue federal agencies. This cap would certainly be applicable to the Natural Resource Defense Council, which has about $182 million in assets and the Sierra Club, which as $79 million in assets, according to the memo.

Another potential reform to the EAJA would include new provisions that set limits on the attorneys’ fees that could be recovered under the law. Holsinger would also like to see public disclosure of the litigation costs awarded to environmental groups.

Nonprofit environmental advocacy that have been asked about the amount of money they have been costing taxpayers in their litigation insist that they are operating in the public interest to uphold laws the government has failed to enforce.

John Horning, executive director of WildEarth Guardians, said in an email message that the amount of money his group has received in legal fees has been overstated.

“We have received on average about $175,000 in legal fees annually over the last 5 years, he said. “That adds up to less than $1 million dollars.  Sometimes sloppy reporters have conflated grants we get from the EPA to restore degraded rivers with the legal fees we recover from enforcing our nation’s environmental laws. Not all the money we get from the government is to pay us for legal fees. The overwhelming majority of funding we get from the federal government on an annual basis (upwards of $700,000 a year) is to clean up polluted waterways.”

But Pyle, the IER president, is convinced average citizens are getting a raw deal not just because of legal fees. But because environmental groups have been permitted to change public policy under sue-and-settle without input from the public or Congress.